What’s Wrong With Tasmania’s Anti-Discrimination Act 1998?

 

This is part of a series of posts looking at Australia’s anti-discrimination laws and discussing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex people. The articles on other jurisdictions can be found here.

 

In these posts, I have analysed Commonwealth, state and territory legislation with respect to three main issues:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage

 

This post will be the shortest of the nine, because in all three areas Tasmania’s Anti-Discrimination Act 1998 is either best practice, or close to best practice, with only minor amendments needed to improve its anti-vilification provisions.

 

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Protected Attributes

 

Unlike some other schemes, Tasmania’s Anti-Discrimination Act 1998 protects all parts of the lesbian, gay, bisexual, transgender and intersex community against discrimination.

 

Section 16 sets out the protected attributes of the Act, and they include sexual orientation (sub-section c), gender identity (ea) and intersex (eb).

 

The definitions of these terms in section 3 are also inclusive:

sexual orientation includes-

(a) heterosexuality; and

(b) homosexuality; and

(c) bisexuality”

 

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and includes transsexualism and transgenderism” (noting that this does not require gender diverse people to adopt a binary identity in order to receive protection). NB There is currently a Bill before the Tasmania Legislative Council that would improve this definition further, by including gender expression – meaning ‘any personal physical expression, appearance (whether by way of medical intervention or not), speech, mannerisms, behaviourally patterns, names and personal references that manifest or express gender or gender identity’.

 

intersex means the status of having physical, hormonal or genetic features that are-

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male”

with Tasmania only the second jurisdiction, after the Commonwealth, to include intersex as a stand-alone protected attribute, although they have since been joined by the ACT and South Australia. It should be noted, however, that in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by the protected attribute of ‘sex characteristics’. NB The same Bill currently before the Legislative Council would also amend the protected attribute to ‘intersex variations of sex characteristics’, removing the definition of intersex and adding a definition of sex characteristics – meaning ‘a person’s physical, hormonal or genetic features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, genes, hormones, and secondary sex characteristics.’

 

Overall, the Tasmanian Anti-Discrimination Act 1998 adopts close to best practice in terms of the protected attributes it includes, covering all LGBTI Tasmanians.

 

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Religious Exceptions

 

The Anti-Discrimination Act 1998 is best practice when it comes to religious exceptions – in fact, Tasmania is better, far better, than any other Australian jurisdiction in this area.

 

There are three provisions outlining relevant religious exceptions in the Act:

 

Section 51 “Employment based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, principles or practices.”

 

Section 51A “Admission of person as student based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.”

 

Section 52. “Participation in religious observance

A person may discriminate against another person on the ground of religious belief or religious activity in relation to-

(a) the ordination or appointment of a priest; or

(b) the training and education of any person seeking ordination or appointment as a priest; or

(c) the selection or appointment of a person to participate in any religious observance or practice; or

(d) any other act that-

(i) is carried out in accordance with the doctrine of a particular religion; and

(ii) is necessary to avoid offending the religious sensitivities of any person of that religion.”

 

At first glance these exceptions appear extensive in their application. However, the most important point to observe is that discrimination by religious bodies, including religious schools, is only allowed on the basis of the person being discriminated against’s religion – for example, a christian school offering preferential enrolment to students that are christian.

 

It specifically does not allow discrimination on the basis of other attributes, such as the person being discriminated against’s sexual orientation, gender identity or intersex status.

 

In this way, the Tasmanian Anti-Discrimination Act 1998 is clearly superior to other state and territory LGBTI discrimination laws, as well as the Commonwealth Sex Discrimination Act 1984 (which not only provides a general religious exception allowing discrimination against LGBT people in a wide range of circumstances, but also a specific one with respect to religious schools that permits discrimination against LGBT students and teachers).

 

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Anti-Vilification Coverage

 

The anti-vilification protections afforded LGBTI Tasmanians under the Anti-Discrimination Act 1998 are also strong – although, as we shall see below, there is one area of possible improvement.

 

There are actually two provisions that prohibit vilification under the Act:

 

Section 17 “Prohibition of certain conduct and sexual harassment

(1) A person must not engage in any conduct which offends, humiliates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed…”

 

Section 19 “Inciting hatred

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of-

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or activity of the person or any member of the group.”

 

As we saw earlier, sub-sections 16(c), (ea) and (eb) cover sexual orientation, gender identity and intersex, consequently all LGBTI Tasmanians have recourse to the general anti-vilification protection found in section 17(1).

 

Interestingly, however, only sexual orientation is deemed worthy of inclusion in the more serious ‘inciting hatred’ prohibition of section 19. Which leads me to suggest one of the few possible improvements to this legislation: an amendment to sub-section 19(c) to include gender identity and intersex (or sex characteristics) which are both equally deserving of this protection. NB The Justice and Related Legislation (Marriage Amendments) Bill 2018, which is currently before the Tasmanian Legislative Council, would make exactly this change. Hopefully it is passed early in 2019.

 

Nevertheless, the anti-vilification protections contained in the Anti-Discrimination Act 1998 are at least the equal of any other state or territory – noting of course that only NSW, Queensland and the ACT have introduced similar protections (with no LGBTI anti-vilification coverage under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory).

 

It should be noted that the current Tasmanian Liberal Government has attempted to undermine these anti-vilification protections. It sought to introduce amendments that would have permitted vilification for public acts done in good faith for ‘religious purposes’ (where “religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief”).

 

This would have inevitably resulted in increased vilification of lesbian, gay, bisexual and transgender Tasmanians. Thankfully, while the Bill was passed by the Liberal-majority Legislative Assembly, it was rejected by the Independent-majority Legislative Council in August 2017.

 

 

will-hodgman

Tasmania Premier Will Hodgman sought to undermine existing anti-vilification protections, and has also opposed the Bill which would add gender identity and intersex variations of sex characteristics to inciting hatred provisions (although it passed the Legislative Assembly with Opposition and Greens support).

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

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What’s Wrong With South Australia’s Equal Opportunity Act 1984?

 

This post is part of a series looking at Australia’s anti-discrimination laws, and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination. The other posts in the series can be found here.

 

In particular, they assess Commonwealth, State and Territory legislation in terms of the following three issues:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

 

Unfortunately, while South Australia has expanded the range of people legally protected against discrimination, the Equal Opportunity Act 1984 remains grossly inadequate because of the breadth of religious exceptions it offers, and its failure to establish LGBTI vilification offences.

 

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Protected Attributes

 

Section 29 of the Equal Opportunity Act 1984 protects lesbian, gay, bisexual, transgender and intersex South Australians from discrimination.

 

Sub-section (2a) defines discrimination “on the ground of gender identity” to include (among other things):

  • “if the person treats another unfavourably because the other is or has been a person of a particular gender identity or because of the other’s past sex;
  • if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of a particular gender identity, or on the basis of a presumed characteristic that is generally imputed to persons of a particular gender identity… and
  • if the person requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify.”

 

Importantly, unlike some jurisdictions, South Australia protects all trans people against discrimination (and not just people with binary gender identities).

 

The protections against discrimination “on the ground of sexual orientation” contained in sub-section (3) are similarly broad, and would cover all lesbian, gay and bisexual South Australians.

 

The Relationships Register Act 2016 has expanded this coverage even further by introducing a new protected attribute of ‘intersex status’, with the addition of sub-section 29(4)[i].

 

With this change, South Australia has become only the fourth jurisdiction in Australia – after the Commonwealth, Tasmania and the Australian Capital Territory – to explicitly protect intersex people against discrimination. Although it should be noted that in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by a protected attribute of ‘sex characteristics’.

 

Summary: The South Australian Equal Opportunity Act 1984 protects lesbian, gay, bisexual, transgender and intersex people against discrimination – with the 2017 inclusion of ‘intersex status’ making it only the fourth Australian jurisdiction, out of nine, to cover the entire LGBTI community.

 

 

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Religious Exceptions

 

Unfortunately, while the Equal Opportunity Act 1984 will soon be close to best practice on protected attributes, in terms of religious exceptions it is anything but.

 

Section 50 sets out an incredibly broad range of circumstances in which religious organisations are legally entitled to discriminate against LGBTI South Australians:

Religious bodies

(1) This Part does not render unlawful discrimination in relation to-

(a) the ordination or appointment of priests, ministers of religion or members of a religious order; or

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or

(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

 

While paragraphs (a) and (b) are at least directly related to religious appointments – and therefore somewhat defensible because of their connection to freedom of religion – paragraph (ba) and especially paragraph (c) effectively encourage discrimination by religious organisations in healthcare and other community services.

 

It also allows discrimination in relation to education in religious schools, and therefore likely overrides the general protections offered to students under section 37, which ostensibly prohibits discrimination with respect to admission as a student, the education or training offered to that student, and expelling or otherwise punishing the student.

 

However, the situation is slightly more complicated with respect to teachers in religious schools, with sub-section 34(3) setting out a separate, specific exception in that area:

“(3) This Division does not apply to discrimination on the ground of sexual orientation,  gender identity or intersex status in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

 

Some may see this as a relatively positive approach, because at the very least it allows everyone to be informed about the policies any particular school adopts. And, admittedly, it is preferable to the carte blanche approach adopted in other states (and especially in New South Wales).

 

However, there are three important qualifications to this ‘benign’ assessment:

  • It still allows discrimination against teachers and other employees in religious schools. This discrimination – which has no connection whatsoever to the ability of LGBTI teachers and other staff to do their jobs – remains unacceptable, irrespective of the procedural steps a school must first negotiate,
  • It is (I believe) unique in Australia in that it specifically states that religious schools can discriminate on the basis of intersex status (despite there being no supporting evidence of doctrines, tenets or beliefs which discriminate against people born with intersex variations), and
  • The general religious exception in sub-section 50(c) nevertheless applies (because it covers all sections in the Part, including those applying to employment). Depending on how the interaction between these two provisions has been interpreted by the judiciary, it is possible that religious schools can ‘pick and choose’ the basis on which they discriminate against teachers and employees (and therefore potentially avoid these procedural hurdles altogether).

 

There is one final religious exception which allows discrimination against LGBTI South Australians – sub-section 35(2b) allows ‘associations’ to exclude and otherwise adversely treat people on the basis of their intersex status, gender identity or sexual orientation “if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion.”

 

Summary: The religious exceptions contained in the South Australian Equal Opportunity Act 1984 allow discrimination against LGBTI people in a wide range of circumstances, including healthcare, community services, associations and in education (at least in relation to students).

 

LGBTI teachers and other staff in religious schools can also be discriminated against simply because of who they are, although whether or not the school must have transparent policies in place to allow such discrimination would depend on judicial interpretation.

 

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Anti-Vilification Coverage

 

This section will be the shortest of this post – because there is none. Lesbian, gay, bisexual, transgender and intersex South Australians have no protection against anti-LGBTI vilification under the Equal Opportunity Act 1984[ii].

 

This is despite the fact that an entire stand-alone act exists with respect to racial vilification (the Racial Vilification Act 1996). Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and just as harmful, as racism, the lack of equivalent protections against anti-LGBTI vilification is, in my opinion, shameful.

 

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Other Issues

There are a few additional issues in the Equal Opportunity Act 1984 that it would be remiss not to at least mention.

 

On the negative side, there is a very broad ‘inherent requirement’ exception in relation to employment. Sub-section 34(2) provides that:

“This Division does not apply to discrimination on the ground of sex, sexual orientation, gender identity or intersex status in relation to employment or engagement for which it is a genuine occupational requirement that a person be of a particular sex, sexual orientation, gender identity or intersex status.”

 

It is difficult to think of many jobs in which it is an inherent requirement that someone be of a particular sexual orientation, gender identity or intersex status. It would be interesting to see on what possible basis the drafters attempted to justify this sub-section.

 

Similarly, sub-section 34(4) allows discrimination in employment against transgender people generally, and non-binary gender diverse people in particular, on the basis of their appearance, stating that:

“This Division does not apply to discrimination on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”

 

Once again, it is hard to see how such discrimination can possibly be justified, and I would argue that both sub-sections (34(2) and (4)) should be repealed.

 

On the other hand, there are two exceptions that allow positive discrimination in favour of LGBTI people.

 

The first, in sub-section 35(2a), permits LGBT-specific associations to be created (for “persons of a particular gender identity”, for “persons of a particular sexual orientation (other than heterosexuality), or for “persons of intersex status”, noting that heterosexuality remains privileged within Australian society).

 

The second, in section 47, authorises actions designed to overcome discrimination against minority groups:

Measures intended to achieve equality

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of a particular sex, sexual orientation, gender identity or intersex status, have equal opportunities with, respectively, all other persons, in circumstances to which this Part applies.”

 

Nevertheless, while these final two provisions are welcome, they do not negate the harmful aspects of the Act, including its overly-generous religious exceptions, and the complete lack of anti-vilification coverage for LGBTI South Australians.

 

It remains to be seen whether the new Liberal Government, under Premier Steven Marshall, will take any action to improve any aspect of the South Australian Equal Opportunity Act 1984.

 

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Will new Liberal Premier Steven Marshall amend South Australia’s out-dated Equal Opportunity Act 1984?

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

 

Footnotes:

[i] “(4) For the purposes of this Act, a person discriminates on the ground of intersex status-

(a) if the person treats another unfavourably because of the other’s intersex status or past intersex status; or

(b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and-

(i) the nature of the requirement is such that a substantially higher proportion of persons who are not of intersex status complies, or is able to comply, with the requirement than of those of intersex status; and

(ii) the requirement is not reasonable in the circumstances of the case; or

(c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of intersex status, or presumed intersex status, or on the basis of a presumed characteristic that is generally imputed to persons of intersex status; or

(d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstances described in the preceding paragraphs.”

[ii] Although South Australia is not alone in this regard – there are also no LGBTI vilification protections in Commonwealth law, and in Victoria, Western Australia and the Northern Territory.

What’s Wrong With the Northern Territory Anti-Discrimination Act?

This post is part of a series of posts looking at Australian anti-discrimination laws and analysing how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification. The other articles can be found here.

 

These articles look at the laws that exist in each jurisdiction, and assess them in three key areas:

  • Protected attributes
  • Religious exceptions, and
  • Anti-vilification coverage.

 

Unfortunately, the Northern Territory Anti-Discrimination Act has significant problems in relation to all three issues, meaning there is plenty of work to do for the Legislative Assembly to ensure LGBTI people are adequately protected against discrimination and vilification.

 

Protected Attributes

 

Sub-section 19(1) of the Northern Territory Anti-Discrimination Act sets out the grounds on which discrimination is prohibited, including “19(1)(c) sexuality.”

 

Sexuality itself is defined in section 4 of the Act as: “sexuality means the sexual characteristics or imputed sexual characteristics of heterosexuality, homosexuality, bisexuality or transsexuality.”[i]

 

On a positive note, employing this definition means the Act does offer protection to lesbians, gay men and bisexual people (something not all state and territory laws do – for example, New South Wales does not cover discrimination or vilification against bisexual people). Although arguably it could still benefit from the more inclusive definition of ‘sexual orientation’, as featured in the Commonwealth Sex Discrimination Act 1984[ii].

 

However, there are significant problems in terms of the Act’s application to discrimination against transgender people. First, because it includes ‘transsexuality’ within the term ‘sexuality’, when it is in fact about gender identity.

 

Second, and more importantly, by using the word ‘transsexuality’ rather than transgender (or including the term ‘gender identity’[iii] as its Commonwealth equivalent does, which would be preferred), it is possible that the Act fails to protect transgender people who are not ‘transsexual’ from discrimination, which is clearly a significant failing.

 

Another significant failing is the complete absence of protection against discrimination for intersex people. This stands in contrast to the Commonwealth, Tasmania, the ACT and South Australia who have all prohibited discrimination on the basis of ‘intersex status’[iv].

 

Summary: The Act does cover discrimination against lesbian, gay and bisexual Northern Territorians (although it could be further improved by adopting a more inclusive definition of sexual orientation). However, by using the term ‘transsexuality’, and including it within the term ‘sexuality’, it is likely the Act does not cover all transgender people. It also fails to offer any protection to intersex people.

 

Religious Exceptions

 

There are some positive, but also several negative, features of the Northern Territory Anti-Discrimination Act in terms of the special rights it grants religious organisations to discriminate against LGBTI people.

 

The primary provision establishing ‘religious exceptions’ is section 51:

“This Act does not apply to or in relation to:

(a) the ordination or appointment of priests, ministers of religion or members of a religious order; or

(b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice; or

(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

 

The drafting of these exceptions is actually relatively narrow when compared with those that exist in other states and territories.

 

For example, while the first two paras above (section 51(a) and (b)) are identical to the NSW Anti-Discrimination Act 1977 section 56(a) and (b), the NSW legislation subsequently goes much further, allowing discrimination in relation to:

“(c) the appointment of any other person in any capacity by a body established to propagate religion; or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

 

In contrast, the primary Northern Territory provision appears to more closely target the appointment of ministers of religion, and religious celebrations and practices, rather than the more nebulous criteria of ‘avoid[ing] injury to the religious susceptibilities of the adherents of that religion”.

 

Indeed, depending on the scope of ‘religious observance or practice’, and how this phrase has been interpreted by the judiciary, the NT provision is arguably more justifiable on the basis it seems to be concerned with religious freedom, rather than providing religious organisations with carte blanche to discriminate against LGBTI people.

 

Unfortunately, the same cannot be said of other sections of the Act. Section 37A provides an incredibly broad exception to religious schools:

“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”

 

In effect, any religious school in the Northern Territory can discriminate against any employee or potential employee solely because they are LGBTI, irrespective of the role and no matter how qualified they may be. This is simply unacceptable and must be removed.

 

The section covering discrimination against students is not as broad. Sub-section 30(2) provides that:

“An educational authority that operates, or proposes to operate, an educational institution in accordance with the doctrine of a particular religion may exclude applicants who are not of that religion.”

 

Note that this only permits discrimination against students on the basis of their religion, and not because of their sexuality (or transsexuality). This is to be welcomed and, if 51(d) (above) has been interpreted narrowly, means LGBT students are protected against discrimination in NT religious schools.

 

The other provision that grants special rights to religious organisations to discriminate is sub-section 40(3), in relation to accommodation:

“A person may discriminate against a person with respect to a matter that is otherwise prohibited under this Division if:

(a) the accommodation concerned is under the direction or control of a body established for religious purposes; and

(b) the discrimination:

(i) is in accordance with the doctrine of the religion concerned; and

(ii) is necessary to avoid offending the religious sensitivities of people of the religion.”

 

If discrimination in relation to the appointment or training of ministers of religion is already allowed under section 51(a) and (b), which would presumably include the facilities used for housing these ministers/trainees, it is difficult to see how this particular section would be justified. As a result, it should be repealed alongside section 37A.

 

Summary: The main religious exceptions offered under the NT Act are relatively modest when compared to some other states and territories. Provided that ‘religious observance of practice’ has been interpreted to mean religious ceremonies and little else, section 51 may not require substantial amendment.

 

However, there is no justification for discrimination against LGBTI employees or potential employees in religious schools, meaning section 37A should be repealed as a matter of priority. Sub-section 40(3), allowing discrimination in relation to accommodation, also appears excessively broad.

 

Anti-Vilification Coverage

 

The Northern Territory is the only jurisdiction in Australia that does not prohibit racial vilification. In which case, it is perhaps unsurprising that there are no prohibitions on vilification against LGBTI people either (the definition of ‘discrimination’ in section 20(1) does include “harassment on the basis of an attribute”, however this falls far short of the usual standard of ‘offend, insult, humiliate or intimidate’[v]).

 

The Government should introduce prohibitions against anti-LGBTI vilification, as well as in relation to other attributes, including race.

 

Michael_Gunner

Will Chief Minister Michael Gunner fix the NT Anti-Discrimination Act?

 

On a positive note, the Northern Territory Government released a discussion paper looking at Modernisation of the Anti-Discrimination Act. It included examination of all of the above issues (protected attributes, religious exceptions and anti-vilification coverage), with submissions due by 31 January 2018. However, almost 12 months later and nothing appears to have come from this consultation. Hopefully, the Gunner Administration introduces amendments to the NT Anti-Discrimination Act as a matter of priority in early 2019.

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

 

Footnotes:

[i] It should be noted here that these concepts (heterosexuality, homosexuality, bisexuality and transsexuality) are not further defined in the legislation.

[ii] Section 4: “sexual orientation means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

(c) persons of the same sex and persons of a different sex.”

[iii] “[G]ender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

[iv] In March 2017, intersex activists from around Australia released the Darlington Statement which called for the protected attribute of ‘intersex status’ to be replaced by ‘sex characteristics’. For more information, see the OII Australia website, here.

[v] For example, sub-section 18C of the Commonwealth Racial Discrimination Act 1975 provides that:

“(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people…”

 

Submission to Victorian Greens Equal Opportunity Amendment (LGBTI Equality) Bill 2016

The Greens Member for Prahran in the Victorian Parliament, Sam Hibbins, is currently undertaking consultation on his exposure draft Bill to amend the Victorian Equal Opportunity Act 2010.

Full details of the consultation process can be found here. The following is my submission:

Mr Sam Hibbins MP

Member for Prahran

94 Chapel St

Windsor VIC 3181

sam.hibbins@parliament.vic.gov.au

Friday 12 February 2016

Dear Mr Hibbins

Consultation on Equal Opportunity Amendment (LGBTI Equality) Bill 2016

Thank you for the opportunity to provide a submission on your exposure draft Equal Opportunity Amendment Bill.

Thank you also for your commitment to improving the anti-discrimination protections that are provided to lesbian, gay, bisexual, transgender and bisexual (LGBTI) Victorians.

I agree with your statement, made as part of this consultation, that “The [Equal Opportunity] Act needs updating so that it better protects same-sex and gender diverse Victorians from discrimination at school, at work and in the community” (although I note that the phrase ‘same-sex and gender diverse’ does not include intersex people).

I believe that your exposure draft Bill addresses two of three major deficiencies in the current Act (and that I have written about previously – What’s Wrong With the Victorian Equal Opportunity Act 2010).

Specifically, the Bill would significantly improve the protected attributes that are included in the Act, by:

  • Introducing a new protected attribute of ‘intersex status’, consistent with the protections offered under the Commonwealth Sex Discrimination Act 1984, and
  • Updating the definition of ‘gender identity’ to be broader, and to remove any requirement to identify as either male or female in order to attract anti-discrimination coverage (and again in line with the 2013 Federal Labor Government reforms to the Sex Discrimination Act).

Both of these changes are overdue, and are welcome.

I also support the proposed amendments to reduce the current excessive and unjustified ‘exceptions’ that are offered to religious organisations and individuals allowing them to discriminate against LGBT Victorians in circumstances where it would otherwise be unlawful to do so.

The balance which the Bill strikes – removing religious exceptions in schools and other services, in employment and by individuals, while retaining exceptions for ‘core religious functions’, such as the appointment of ministers of religion and the conduct of religious ceremonies[i] – appears to be a reasonable one.

However, there is one major deficiency of Victorian anti-discrimination and vilification law that your exposure draft Equal Opportunity Amendment (LGBTI Equality) Bill 2016 does not address – and that is the absence of anti-vilification protections covering LGBTI people.

As I have written previously:

“There are… protections against both racial and religious vilification under Victoria’s Racial and Religious Tolerance Act 2001.

“With homophobic, biphobic, transphobic and intersexphobic vilification just as serious, and just as detrimental, as racial and religious vilification, there is no reason why LGBTI people should not have equivalent protections under Victorian law.”[ii]

In this context, the major suggestion I would make for improvement to your exposure draft Bill is for you to consider amendments to introduce protections against vilification on the basis of sexual orientation, gender identity and intersex status, equivalent to the current prohibitions on racial and religious vilification contained in the Racial and Religious Tolerance Act 2001.

Outside of these three main issues – protected attributes, religious exceptions and anti-vilification protections – the other reforms proposed by the exposure draft Bill, to “restore… the powers of the Victorian Equal Opportunity and Human Rights Commission to conduct public inquiries, enter into enforceable undertakings and to issue compliance notices” and to “restore… the power for the Commission to order someone to provide information and documents, and to order a witness… to attend and answer question” also appear reasonable.

Overall, then, I support the provisions contained in the exposure draft Equal Opportunity Amendment (LGBTI Equality) Bill 2016, but encourage you to consider adding provisions to provide protections against vilification on the basis of sexual orientation, gender identity and intersex status.

Beyond the content of the proposed Bill itself, however, I would like to make the additional point that, given the failure of the Victorian Legislative Council to support reforms in late 2015 to ensure that religious organisations could not discriminate against LGBTI people accessing adoption services, the passage of any of the above reforms would appear to be difficult, at least in the current term of Parliament.

In this context, I urge you and the Victorian Greens to work collaboratively with the state Labor Government, the Sex Party (who also supported last year’s reforms), and the Victorian LGBTI community, to persuade remaining cross-benchers, and indeed sympathetic Liberal and National MLCs, to support at least some of these reforms now – while retaining the option of passing the remainder following the 2018 election.

Thank you for taking this submission into consideration. If you would like any additional information, or to clarify any of the above, please contact me at the details provided below.

Sincerely

Alastair Lawrie

160212 Sam Hibbins

Member for Prahran, Sam Hibbins MP.

Update: 14 January 2017

The Greens introduced an amended version of this legislation into Victorian Parliament in mid-2016.

Renamed the Equal Opportunity Amendment (Equality for Students) Bill 2016, as the name suggests it focused specifically on ensuring religious schools could not discriminate against LGBT students.

Its major provision would have added the following new section to the Equal Opportunity Act 2010:

84A Discrimination against school students not exempt

Sections 82(2), 83 and 84 do not permit discrimination by a person or body that establishes, directs, controls, administers or is an educational institution that is a school against a student on the basis of the student’s sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.”

Unfortunately, despite the modest nature of this proposed reform, it was rejected by the Victorian Legislative Council on November 9 2016, by a margin of 32 to 6 (as reported by the Star Observer here).

Footnotes:

[i] The Bill would leave sub-section 82(1) of the Victorian Equal Opportunity Act 2010 in tact:

“Nothing in Part 4 applies to-

  • the ordination or appointment of priests, ministers of religions or members of a religious order; or
  • the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
  • the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.”

[ii] What’s Wrong With the Victorian Equal Opportunity Act 2010